States Pass Laws Constraining Access to Passwords and User Accounts for Social Media Employment Background Checks

Tue, February 12th, 2013 - 2:40 pm - By Gordon Basichis

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Social Media background checks for employment screening purposes can reveal quite a bit about an employment candidate’s character and behavior patterns.   An employer can determine definite negatives, where the job applicant displays violent tendencies in his postings or lauds his use of drugs or alcohol.   Of course, when a candidate lambastes past employers or the managers to whom he reported, this may be a troublesome sign.

For some critics, the value of social media research has been questionable. The challenge has always been the accuracy of information that is found as well as privacy issues.

However, there are times when requesting such things as access to the actual social media account, where the candidate must surrender his password and other information, can be most intrusive.   In short there are limitations to access, anymore than there are limitations is distinguished a talented eccentric  from a slacker doofus.    By requesting passwords and information to access a job applicant’s user account, the employer is crossing a line.  This is a transgression and, wisely, a number of states are forbidding this behavior.

I have written before about states restraining access to social media accounts.  One such article was entitled, California Invokes Strict Media Privacy Law.  It is a sensible law.

Maryland was the first state to prohibit employers from requiring applicants and employees to provide user-names, passwords, etc. to access their social media sites. California, Illinois, and Michigan have also passed similar laws.

New Jersey will most likely be the next state to ban this practice. Bill A2878 (2012) was passed by both state legislative bodies and is awaiting the Governor’s signature. This Bill prohibits an employer from requesting applicants or employees to disclose that they have a social media account or provide the user names and passwords to these accounts. The bill is scheduled to take affect on the first day of the fourth month following enactment.

There are companies that can conduct social media reports that are FCRA compliant.  If you have any question about the social media reports you are conducting, use caution when instituting a social media research policy. Not only is there a chance that a fake Facebook page, YouTube video or Internet blog was created to defame someone, using information developed through a social media search could violate FCRA and  EEOC Guidelines.


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